NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

RICHARD C. DALE,

Petitioner

v.

DEPARTMENT OF THE NAVY,

Respondent

______________________ 

2016-2488

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. PH-0752-13-1318-I-1.

______________________ 

Decided: August 14, 2017

______________________ 

 RICHARD C. DALE, Richmond, RI, pro se.

 RETA EMMA BEZAK, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, for respondent. Also represented by 

CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., ELIZABETH 

M. HOSFORD. 

______________________ 

Before O’MALLEY, REYNA, and TARANTO, 

Circuit Judges.
2 DALE v. NAVY

PER CURIAM. 

The Merit Systems Protection Board affirmed the 

United States Department of the Navy’s decision to 

furlough various civilian employees in 2013, including 

Richard Dale. Mr. Dale appeals from the Board’s decision, arguing that the Navy improperly furloughed him. 

Because we find no legal error in the Board’s analysis and 

substantial evidence supports the Board’s findings, we 

affirm.

BACKGROUND

1. The Sequester and Furlough

This appeal stems from events set in motion by the 

Budget Control Act of 2011 (“BCA”). The BCA sought to 

limit federal agency spending by creating automatic 

budget reductions known as “sequestration” if Congress 

failed to enact deficit reduction legislation by January 15, 

2013. Pub. L. No. 112-25, §§ 101–103, 125 Stat. 240, 241–

46 (2011). Congress later passed the American Taxpayer 

Relief Act of 2012, Pub. L. No. 112-240, § 901, 126 Stat. 

2313, 2370 (2012), which delayed sequestration until 

March 1, 2013. Congress did not enact deficit reduction 

legislation by March 1, 2013; therefore, President Obama 

issued the required sequestration order on that date. 78 

Fed. Reg. 14,633. The sequestration order canceled $85 

billion in resources across the federal government for the 

remainder of fiscal year 2013. Of that total, the Department of Defense (“DoD”) suffered a $37 billion cancellation. J.A. 226; Calhoun v. Dep’t of the Army, 845 F.3d 

1176, 1177 (Fed. Cir. 2017). 

In May 2013, Secretary of Defense Chuck Hagel issued a Memorandum stating that DoD managers should

prepare to furlough most civilian personnel for up to 11 

days due to “[m]ajor budgetary shortfalls.” J.A. 245. 

Secretary Hagel’s May 2013 Memorandum exempted 
DALE v. NAVY 3

several categories of DoD employees from furlough. J.A. 

246–47; see also J.A. 227 (summarizing categories). 

Mr. Dale is employed as an attorney in the Navy’s Office of General Counsel. On May 28, 2013, Mr. Dale was 

issued a Notice of Proposed Furlough. The May 2013

Notice stated that the Navy proposed to furlough 

Mr. Dale no earlier than 30 days after his receipt of the 

notice. It further stated that the furlough “is necessitated 

by the extraordinary and serious budgetary challenges 

facing [DoD] for the remainder of Fiscal Year (FY) 2013, 

the most serious of which is the sequester that began on 

March 1, 2013.” J.A. 223.

On June 24, 2013, Mary Wohlgemuth, Technical Director, Naval Undersea Warfare Center (“NUWC”) Division, Newport, Rhode Island, issued to Mr. Dale a Notice 

of Decision to Furlough. The June 2013 Notice upheld the 

reasoning provided in the Notice of Proposed Furlough 

and required Mr. Dale to be on discontinuous furlough for 

up to 11 workdays between July 8, 2013 and September 

30, 2013. The June 2013 Notice advised Mr. Dale of his 

right to appeal the Navy’s furlough decision to the Board. 

In July 2013, Mr. Dale filed an appeal with the Board. In 

August 2013, following congressional and agency budgetary action, Secretary Hagel reduced the furlough from 11 

days to 6 days. 

2. Appeal to the Board

a. Discovery Dispute

On appeal before the Board, Mr. Dale sought discovery from the Navy, including broad interrogatories regarding communications between the Navy and the 

Board. After the Navy objected, Mr. Dale moved to compel responses from the Navy and moved for sanctions. In 

December 2015, the administrative judge (“AJ”) granted 

Mr. Dale’s motion in part, ordering the Navy to respond to 
4 DALE v. NAVY

certain interrogatories and deposition requests. J.A. 95–

96. The Navy provided updated responses. 

Still unsatisfied, Mr. Dale filed a second motion to 

compel and for sanctions in January 2016. The AJ denied 

Mr. Dale’s January 2016 motion. The AJ wrote that

Mr. Dale did not establish that the information he sought 

would be reasonably calculated to lead to admissible 

evidence. The AJ also noted that the Navy provided a 

sworn declaration stating that, although the Navy and 

the Board communicated regarding the furlough appeals, 

those communications were limited to administrative 

information. J.A. 135. The AJ concluded that the communications between the Navy and the Board were not 

prohibited ex parte communications and that they did not 

substantively affect Mr. Dale’s appeal. Id. Mr. Dale 

moved to certify an interlocutory appeal regarding the 

discovery dispute, which the AJ denied.

b. Initial Decision

In a May 16, 2016 initial decision, the AJ affirmed the 

Navy’s actions after concluding that the Navy “has proven 

by preponderant evidence that there was a factual basis 

for the furlough actions and that the furlough actions 

were taken only for such cause as promoted the efficiency 

of service.” J.A. 225. In support of its conclusion, the AJ

cited a declaration by Robert Hale, the Under Secretary of 

Defense (Comptroller)/Chief Financial Officer of DoD. 

Comptroller Hale explained that DoD had begun as early 

as February 2013 to slow spending in anticipation of a 

possible sequester. He explained additional cuts that 

occurred in April 2013. These cuts, however, were not 

sufficient to limit spending to congressionally mandated 

levels without civilian furloughs.

The AJ also cited a declaration by Ms. Wohlgemuth, 

who was the deciding official for civilian employees of the 

NUWC Division Newport, including Mr. Dale. 

Ms. Wohlgemuth stated that she followed the Navy’s 
DALE v. NAVY 5

furlough guidance, reviewed the civilian employees’ 

replies, and exempted 104 employees who fit within the 

various exempt categories. J.A. 227. Ms. Wohlgemuth 

determined that Mr. Dale did not fit any category for 

exemption. J.A. 227–28.

The AJ summarized and rejected each of Mr. Dale’s 

arguments on appeal. First, Mr. Dale argued that the 

Navy failed to fairly and evenly furlough employees 

because certain civilians, such as shipyard employees, 

were granted exemptions. The AJ noted that Mr. Dale 

never alleged that he was a shipyard employee or offered 

evidence that his position was similarly situated to shipyard employees. J.A. 228. The AJ thus found that the 

Navy fairly and evenly applied its furlough criteria. Id.

Second, Mr. Dale argued that his status as a Working 

Capital Fund or NUWC employee should have exempted 

him from furlough. In Mr. Dale’s view, the Navy processed his furlough in violation of the Balanced Budget 

and Emergency Deficit Control Act of 1985 (“BBEDCA”), 

the BCA, and 10 U.S.C. § 129. Section 129 requires DoD 

to manage each fiscal year consistent with “the workload 

required to carry out [its] functions and activities” and 

“the funds made available” to DoD each fiscal year. The 

AJ cited Comptroller Hale’s declaration that the furloughs 

saved personnel costs and did not contravene § 129, which 

requires DoD to manage its workforce based on the funds 

allocated to it each fiscal year. J.A. 229. Finding that

Mr. Dale failed to refute Comptroller Hale’s declaration, 

the AJ determined that the Navy did not violate § 129. 

The AJ further found that Mr. Dale failed to substantiate 

his claim that he was exempt pursuant to the BBEDCA or 

BCA. Id.

Third, Mr. Dale argued that Secretary Hagel failed to 

give adequate notice of the furlough, in violation of 10 

U.S.C. § 1597(e). Section 1597(e) requires the Secretary 

of Defense to provide a report to Congress about why 
6 DALE v. NAVY

furloughs are required and then wait at least 45 days 

before instituting the furlough. The AJ found that Secretary Hagel complied with § 1597(e) because he submitted 

a notice to Congress on February 20, 2013 and issued the

notices of furlough in June 2013. J.A. 229–30. Therefore, 

the AJ concluded, Mr. Dale’s argument was “without 

merit.” J.A. 230.

Fourth, Mr. Dale argued that the Navy had enough 

funds to avoid the furlough and that its spending and 

furlough decisions were politically motivated. The AJ 

determined that “it was reasonable for D[o]D to consider 

its situation holistically, rather than isolating each individual military department’s situation.” J.A. 230. The AJ

also found that, because the Navy’s basis for invoking the 

furlough was legitimate, the AJ had “no authority to 

review the management considerations that underlie the 

agency’s exercise of its discretion in structuring the 

furlough actions.” Id.

Fifth, Mr. Dale argued that the Navy violated his due 

process rights because “the proposing and deciding official 

had no independent authority based on Secretary Hagel’s 

decision to furlough all civilian employees.” Id. The AJ 

explained that due process requires a meaningful opportunity to respond to a notice of proposed furlough. Due 

process further requires a deciding official who has the 

authority to take or recommend agency action based on 

that response. Citing Ms. Wohlgemuth’s declaration, the 

AJ found that Mr. Dale received “notice of the proposed 

furlough actions, an opportunity to review the supporting 

materials, and an opportunity to respond to the proposal.” 

J.A. 231. Ms. Wohlgemuth testified that she had authority to modify the furlough length based on employees’ 

responses to the notice of proposed furlough. The AJ 

found Ms. Wohlgemuth’s testimony was consistent with 

Secretary Hagel’s statement and unrefuted by Mr. Dale. 

Id. Based on this evidence, the AJ concluded that the 

Navy did not violate Mr. Dale’s due process rights.
DALE v. NAVY 7

Finally, Mr. Dale argued that the Navy violated Secretary of the Navy Instruction (“SECNAVINST”) 

5430.25E MD-13, which states that all personnel actions 

involving attorneys must be subject to the approval of the 

General Counsel. The Navy submitted a June 11, 2013 

memorandum entitled “Delegation of Authority to Furlough Office of General Counsel (OGC) Attorneys,” which 

addressed Section 5430.25E and delegated authority of 

the General Counsel to decide whether to furlough OGC 

attorneys to the deciding officials. J.A. 232. Mr. Dale did 

not dispute the existence of the memo, and the AJ determined that he failed to establish a violation of Section 

5430.25E. Even if there were a violation, the AJ noted, 

Mr. Dale failed to prove that the furlough decisions would 

have been different absent the error. J.A. 233. Based on 

this evidence, the AJ found that Mr. Dale failed to prove 

harmful error in the Navy’s furlough actions and affirmed 

the Navy’s action. Id.

The AJ’s decision became final on June 20, 2016. 

Mr. Dale appeals from the final decision. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

DISCUSSION

Congress requires us to affirm Board decisions unless 

they are “(1) arbitrary, capricious, an abuse of discretion, 

or otherwise not in accordance with law; (2) obtained 

without procedures required by law, rule, or regulation 

having been followed; or (3) unsupported by substantial 

evidence.” 5 U.S.C. § 7703(c). As the petitioner, Mr. Dale 

bears the burden of proving that the Board erred. Jones 

v. Dep’t of Health & Human Servs., 834 F.3d 1361, 1366 

(Fed. Cir. 2016). Mr. Dale must also prove that any 

agency error substantially harmed or prejudiced him, 

such that the outcome of the case could have been different. 5 C.F.R. § 1201.56(b)(1), (c)(3) (2005); Whitmore 

v. Dep’t of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012).
8 DALE v. NAVY

On appeal before this court, Mr. Dale raises many of 

the same issues he raised before the Board. First, he 

argues that he was improperly denied discovery. Relying 

on Templeton v. Office of Personnel Management, 951 F.2d 

338, 342 (Fed. Cir. 1991), Mr. Dale contends that employees are permitted broad discovery against their employers. He concedes, however, that “[p]rocedural matters 

relative to discovery and evidentiary issues fall within the 

sound discretion of the board and its officials.” Smith 

v. Dep’t of the Air Force, 638 F. App’x 992, 995 (Fed. Cir. 

2016) (quoting Curtin v. Office of Pers. Mgmt., 846 F.2d 

1371, 1378 (Fed. Cir. 1988)). Thus, we review this matter 

for abuse of discretion. The AJ determined that the Navy 

provided adequate responses to Mr. Dale’s discovery 

requests and that further responses would not have

resulted in relevant information reasonably calculated to 

lead to admissible evidence. J.A. 134–36. Mr. Dale has 

not raised any argument on appeal demonstrating that 

the AJ’s determination was an abuse of discretion. He 

also has not demonstrated, as he must, that the outcome 

of the case could have been different if the AJ allowed the 

discovery. See Whitmore, 680 F.3d at 1368.

Second, Mr. Dale appears to argue that the Navy engaged in improper ex parte communications with the 

Board. Board regulations prohibit “ex parte communications that concern the merits of any matter before the 

Board for adjudication, or that otherwise violate rules 

requiring written submissions.” 5 C.F.R. § 1201.102. As 

Mr. Dale correctly concedes, however, “under Board 

practice, ex parte communications are not prohibited per 

se.” Opening Br. 21. Mr. Dale does not does not persuade 

us that the Navy’s communication with the Board was 

improper in this case. He cites four proposals that the 

Navy sent the Board on July 10, 2013, in anticipation of 

“the unprecedented volume of appeals from one DoD 

component alone.” J.A. 243. All four proposals, however, 

were procedural and not substantive. The July 10, 2013 
DALE v. NAVY 9

communication did not concern the merits of Mr. Dale’s 

appeal and thus was permissible. The Board’s July 23, 

2013 response to the Navy similarly discussed only procedural methods for managing the influx of appeals. See

J.A. 241–42. We agree with the Board that the ex parte

communications between the Navy and the Board were 

not improper. 

Mr. Dale next argues that the Navy failed to provide 

him adequate notice and an opportunity to respond to the 

notice of furlough. According to Mr. Dale, 

Ms. Wohlgemuth “lacked the authority to do anything 

other than confirm the DoD’s directed furlough.” Opening 

Br. 34. Mr. Dale asserts that DoD directed the Navy to 

furlough employees and restricted the Navy’s discretion in 

deciding furlough cases. The record indicates, however, 

that Ms. Wohlgemuth possessed sufficient discretion to 

comport with due process. She testified that, after reviewing employees’ responses, she exempted over 100 

employees. J.A. 227. 

We recently held that due process does not require the 

deciding official to have “unfettered discretion”; rather, 

she need only have “authority to take or recommend 

action.” Calhoun, 845 F.3d at 1179. In Calhoun, we 

concluded that the appellant’s due process rights were not 

violated when the deciding official’s discretion was limited 

to determining whether the petition fell within one of the 

exemption categories or whether furlough hours should be 

reduced. Id. So too here, Ms. Wohlgemuth had discretion 

to take or recommend action—and did so for over 100 

employees. J.A. 227, 231, 319. We find such discretion to 

be “commensurate with the nature of the furlough decisions.” Calhoun, 845 F.3d at 1179. 

Next, Mr. Dale argues that the furlough violated 5 

C.F.R. § 752.404, which sets forth procedures governing 

proposed action. Section 752.404(b)(1) requires the agency to “state the specific reason(s) for the proposed action.” 
10 DALE v. NAVY

Mr. Dale contends that his notice of proposed action 

“never stated the basis for selecting Mr. Dale himself” and 

“never discussed the establishment of competitive levels” 

necessary to distinguish which employees should be 

furloughed from those who should not. Opening Br. 45. 

As the Government points out, however, an agency “must 

state the basis for selecting a particular employee for 

furlough” only if “some but not all employees in a given 

competitive level are being furloughed.” § 752.404(b)(2). 

Mr. Dale fails to allege, and we do not discern anything in 

the record to suggest, that some employees within 

Mr. Dale’s competitive level were not furloughed. See J.A. 

8–9 (providing reasons “if” other employees are not furloughed or furloughed for a different amount of time, but

not stating any differences actually occurred). Thus, 

§ 752.404(b)(2) does not apply, and the Navy was not 

required to state the basis for furloughing Mr. Dale in 

particular.

Mr. Dale next alleges that the Navy violated the version of 10 U.S.C. § 129(b) in effect at the time of the 

furlough. Specifically, Mr. Dale argues that the furlough 

“constituted a prohibited constraint or limitation in terms 

of man years.” Opening Br. 50. We agree with the Government that the Navy was required to manage its fiscal 

year “solely on the basis of and consistent with” the 

required workload and the available funds. 10 U.S.C. 

§ 129(a) (2011). Comptroller Hale stated that a shortterm furlough comported with § 129, J.A. 303, and while 

we do not defer to legal conclusions, we agree with Comptroller Hale’s assessment here. Substantial evidence 

supports finding that the furloughs were necessary to 

comply with § 129(a), and Mr. Dale has failed to explain 

how the six-day furlough violates § 129(b) by constraining 

or limiting man years. 

Finally, Mr. Dale asserts that the Navy violated 

SECNAVINST 5430.25E. That instruction requires “all 

personnel actions involving OGC attorneys” to be “subject 
DALE v. NAVY 11

to the approval of the General Counsel.” J.A. 277. The 

General Counsel of the Navy did not make the furlough 

decision, argues Mr. Dale, nor was the decision subject to 

the General Counsel’s approval. Mr. Dale acknowledges 

that the General Counsel delegated furlough authority to 

the deciding official. See J.A. 232–33, 294–95. But he 

argues that the instruction does not provide for delegation. We agree with the Government that the relevant 

inquiry is not whether the instruction affirmatively 

allowed delegation but whether it prohibited delegation. 

Here, we find no indication that the General Counsel was 

prohibited from delegating the furlough authority under 

these circumstances. We thus find no violation of 

SECNAVINST 5430.25E.

CONCLUSION

We have considered the remainder of Mr. Dale’s arguments and find them to be unpersuasive. The Board 

properly applied the law to Mr. Dale’s appeal, and substantial evidence supports its findings. We therefore 

affirm the Board’s final decision. 

AFFIRMED

COSTS

No costs.